McCann (John) & Company v Pow
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,Lord Justice Browne |
| Judgment Date | 08 October 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1008-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 1974 |
[1974] EWCA Civ J1008-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Denning),
Lord Justice Orr and
Lord Justice Browne.
Appeal by -defendant from judgment of His Honour Judge Lermon at Epsom County Court on 20th September 1973.
Mr. R. HENDERSON (instructed by Messrs. Rowles & Co, of Epson) appeared on behalf of the Appellant Defendant.
Mr. M. TENNANT (instructed by Messrs. A.R. Drummonds) appeared on behalf of the Respondent Plaintiff.
In August 1972 Mr. Pow was the owner of a flat, 18 Briavels Court, Downshill Road, Epsom. It was a leasehold with 994 years unexpired at a ground rent of £26 a year. Early in August he was in private negotiation to sell it to a lady. But it was doubtful whether she would buy it, so on 14th August, 1972, he instructed a firm of estate agents, John McCann & Co., to find a purchaser. He said that he wanted £14,350 for the flat. The arrangement, as found by the Judge, was that if the estate agents introduced soar one who purchased the flat, Mr. Pow would pay them a reasonable commission.
Nothing was said about their being "sole agents". But Mr. Pow had no other agents. He had only instructed them. Thenceforward John McCann & Co. undoubtedly treated themselves as sole agents. They advertised the flat in the, local newspapers, with photographs, on 17th, 24th and 31st August. In these advertisements they gave the heading "John McCann & Co."; they described the flat, they gave the price "£14,350 leasehold", and they added the significant words "Sole Agents". Mr. Pow took no exception to those advertisements. He realised that, although John McCann were sole agents, it was still open to him to deal privately himself with any prospective purchasers: and that, if he himself secured a purchaser - without the assistance of the estate agents - he would not be liable to pay them commission, see Bentall v. Vlcary (1931) 1 K.3. 253.
Now it appears that John McCann & Co. did not keep the flat solely in their own hands. On the very day on which Mr. Pow instructed them - that is, on 14th August, 1972 - they sent particulars of the property to another firm of estate agents called Douglas & Co. But they did not give Douglas & Co. the vendor's name or telephone number. Douglas & Co. received theparticulars on 15th August, 1972. They entered the flat in their own books with the note: "Keys and View through John MoCanu & A Co." Douglas & Co. then prepared particulars on their own headed paper " Douglas & Co." with the price and everything copied straight from the particulars which John McCann had prepared, adding at the foot "View by appointment through the agents, Messrs. Douglas & Company as above. Then Douglas & Co. circulated those particulars - as if their own - to a number of persons who they thought might be interested. Soon afterwards on 29th August 1972 a Mr. Rudd called on Messrs. Douglas & Co.
He enquired about buying a flat. Their secretary gave him three addresses including the flat at 18 Briavels Court. She did not know the vendor's name and telephone number. So she rang John McCann & Co. They gave her the name of the vendor Mr. Pow and his number. She gave this information to Mr. Rudd. It was the only way in which Mr. Rudd heard of the property.
On the next day Mr. Rudd went to see Mr. Pow at the flat. Mr. Pow asked him: "Have you come from McCann's?" Mr. Rudd said "No, I have come privately." Thereupon Mr. Pow thought that he would not be liable to pay commission if he sold to Mr- Rudd. He had no idea that any other agents were involved. The Judge expressly so found. Mr. Pow and Mr. Rudd then negotiated between themselves. They agreed a price of £14,200. (I expect Mr. Pow was ready to accept a lower figure than £14,350 because he thought he would not have to pay commission out of it.) On 9th September, 1972, each instructed solicitors to prepare the contract of sale.
A day or two later, on 7th September, 1970, Mr. Pow went along to John McCann and told them that Mr. Rudd was interested and that it was a private sale. (John McCann at that time did not know anything about Mr. Rudd; as they had not introduced him.) wou'id John McCann at that interview said that they would like to involve sub-agents, just in case the sale to Mr. Rudd fell through.Mr. Pow agreed to this. That was 7th September, 1970. Soon afterwards the sale to Mr, Rudd was effected without a hitch. So there was nothing for a sub-agent to do.
A little later John McCann found out that Douglas & Co. had told Mr. Rudd about the flat, and that it was through Douglas & Co. that Mr. Rudd had heard of it. John McCann & Co. then claimed that they were entitled to commission. They said that Douglas & Co. were their sub-agents. John McCann brought an action in the County Court for £275,50 commission. They pleaded C that "the plaintiffs, through their sub-agents, Douglas & Co., introduced one C.G. Rudd to the defendant, who thereafter purchased the said property for the sum of £14,200." Mr. Pow acted in person. He wrote a statement in his defence. He objected to any payment because, he said, McCann's had not introduced the purchaser to him at all; it was private negotiation between him and Mr. Rudd, and he ought not to pay commission on it. The Judge found that Mr. Pow was liable for commission and he gave judgment for £275,50.
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